Verna Vanase et al. v. Luciene Gagnon, Administrator (2011)

MEMORANDUM OF DECISION RE:  MOTION TO DISMISS (NO. 110)

The defendant, Joseph Gagnon, argues that this action brought by the plaintiff, Verna Vanase, should be dismissed because he is deceased, because he was not the executor of his wife's estate when this action was commenced, and finally, because he was not properly served with process.   This action was originally brought against Lucienne Gagnon by way of writ, summons and complaint dated February 11, 2011.   Lucienne Gagnon died on February 16, 2010.   This court, Cosgrove, J., granted the plaintiff's motion to substitute Gerard J. Gagnon as the defendant, in his capacity as administrator of the estate of Lucienne Gagnon, on July 12, 2010.

Subsequently, on July 19, 2010, this court, Cosgrove, J., granted the plaintiff's amended motion to substitute Joseph Gagnon as the defendant, in his capacity as the executor of Lucienne Gagnon's estate.   Joseph Gagnon died on October 17, 2010, and was therefore, not deceased when this action commenced against him by way of writ, summons and the plaintiff's amended complaint dated July 22, 2010.   Nevertheless, the court agrees that the defendant is entitled to dismissal.   It is well established that “[t]he grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”   Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

Here, the defendant demonstrated that he was not the executor of the estate when this action was commenced as Lucienne Gagnon's estate was only open from June 8, 2010 until June 14, 2010.   Furthermore, he demonstrated that he was not residing at 45 Pine Street in Norwich, Connecticut on or about July 30, 2010, when he was allegedly served with process at that address.   Rather, he was residing at 235 Lestertown Road in Groton, Connecticut.   These representations are uncontradicted by the plaintiff.

In dismissing this action, however, the court takes judicial notice of Feraco v. Gagnon, Docket No. CV 08 5007655, pending in this judicial district.   In that negligence action, the plaintiff similarly seeks damages against Lucienne Gagnon as the result of an automobile accident.   By her third amended complaint, the plaintiff alleges that Attorney George L. Kennedy is the executor of the estate of Lucienne Gagnon.   For all of the foregoing reasons, the defendant's motion is granted.

Cosgrove, J.

Cosgrove, Emmet L., J.